Criminal Justice (Psychoactive Substances) Act 2010

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Prohibition order.

8.— (1) Where a prohibition notice has been served on a person and a member of the Garda Síochána not below the rank of superintendent is of opinion that the person is not in compliance with a direction contained in the notice, he or she may apply to the District Court for an order (in this Act referred to as a “prohibition order”) prohibiting that person from engaging in or continuing to engage in the activity of selling or advertising, as the case may be, such substance or object as may be specified in the order or, as may be appropriate, importing or exporting such substance as may be specified in the order.

(2) An application for a prohibition order shall be made on notice to the person who is the subject of the prohibition notice concerned and to any other person in relation to whom the court directs that notice of the application be given.

(3) The court may make a prohibition order in respect of a person if—

(a) having considered the evidence before it which shall, in the case of an application in respect of the activity referred to in paragraph (a)(i) or (b) of section 7 (1), include a certificate of analysis in respect of the substance concerned, and

(b) having had regard to all the circumstances of the case, including, in the case of an application in respect of the activity referred to in paragraph (a) (i) or (b) of section 7 (1), the matters referred to in subsection (4),

it is satisfied that—

(i) the person concerned has, after the service of the prohibition notice, sold or advertised, as the case may be, a psychoactive substance or an object specified in the notice served on him or her or, as may be appropriate, imported or exported a substance specified in the notice served on him or her, and

(ii) it is necessary to prevent the person from engaging in or continuing to engage in the activity concerned,

unless the court considers that making the order would be unjust in all the circumstances of the case.

(4) When considering an application for a prohibition order which relates to the activity referred to in paragraph (a)(i) or (b) of section 7 (1), the court shall, notwithstanding any oral or written statement made, any indication given on any packaging, label or leaflet or any indication given by means of the internet or by any electronic communication, that the substance to which the application relates is not a psychoactive substance or is not intended or fit for human consumption, have regard to—

(a) any indication given by the respondent orally or in writing, by means of the internet or by electronic communication or any indication otherwise given by means of any packaging, leaflets, notices or by any other object or thing that the substance concerned may have psychoactive effects or that it may be consumed in a way similar to a controlled drug,

(b) any indication in or at any place specified in the application that suggests the consumption of controlled drugs, including the presence of any apparatus, equipment or thing which may reasonably be associated with the consumption of controlled drugs, and

(c) whether it is reasonable to find that the substance concerned is being sold or imported or exported, as the case may be, for an alternative lawful purpose, taking into account the cost and quantity of the substance being sold or being imported or exported, as the case may be.

(5) A prohibition order—

(a) shall specify the psychoactive substance, object or advertisement to which the order relates and, where the court considers it appropriate to do so, may specify any place to which the order relates,

(b) shall specify the grounds upon which the order is made,

(c) shall provide for notice of it to be given to any person who appears to be or is affected by it, unless the court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts,

(d) shall state that it shall come into effect immediately upon service of the order, and

(e) may contain such terms, conditions and restrictions as the court considers necessary or expedient in the circumstances.

(6) A person who fails or refuses to comply with a prohibition order shall be guilty of an offence.

(7) A prohibition order shall remain in force unless—

(a) it is varied or discharged on appeal under this section, or

(b) it is varied under section 9 .

(8) An appeal shall lie to the Circuit Court from the making of a prohibition order but the bringing of such an appeal shall not affect the operation of the prohibition order, unless the court or the Circuit Court, on application to it in that behalf within 7 days from the date of the making of the order, makes an order staying its operation pending the determination of the appeal.

(9) A prohibition order shall not operate to affect any lawful obligations of any person under any lawful contract or agreement and those obligations shall continue to be determined in accordance with the contract or agreement, as the case may be.

(10) The making of a prohibition order under this section shall not in respect of a person prevent the making of a further prohibition order under this section in respect of the person.

(11) Notwithstanding the generality of any other enactment or rule of law concerning the regulation of the sittings and the vacations of the District Court, such special sittings of the District Court as may be necessary for the purposes of this section shall take place during court vacation periods for the determination of an application under this section.